Monday, June 12, 2006

The Chief Justice's Foot In The Supreme Court's Mouth

UPDATE #2:It is completely self-serving, now that he happens to be Chief Justice, for Artemio Panganiban to accuse a previous Court of having unjustly executed a convicted child rapist, since he dissented in the original decision. So there is no admission against his own interests here, or "humility." Instead there is the admission of a purely ideological purpose. He claims to prove how irrevocable capital punishment is. Heck if this is his proof for that, maybe those who support the abolition ought to take a second look!

UPDATED: Panganiban's original comments on the Leo Echegaray decisions were bad enough, but his defense of them as a mere expression of his "personal opinion" does not hold up to scrutiny. Consider his reason for NOT also commenting on the Erap cases: he says the plunder case might come up for review in the Supreme Court and thus become sub-judice. But the case that former Pres. Estrada is talking about has nothing to do with his current plunder trial. Erap is referring to the two Supreme Court Decisions, Estrada vs. Arroyo (March, 2001) and Estrada vs. Desierto (April, 2001) in which the Davide Court did several amazing somersaults with Panganiban in the co-starring role:

(1) They declared as "constitutional throughout" the military-judicial coup d'etat-based REGIME CHANGE which the Supreme Court itself actively and essentially caused by declaring the Presidency vacant on 20 January 2001. No matter how the people power ideologues midrash the event, there would have been no regime change in 2001 if only the Supreme Court decided to think about the fax that Mrs. Arroyo sent them on that same morning of 20 January 2001 for even a week or so, and carried out the explicit Constitutional requirements on presidential succession by permanent disability. Which of course they did not do in the 45 minutes they spent between 11:36 am when the fax arrived, and the arrival of Chief Justice Davide at the Edsa Shrine to administer the regime changing oath!(2) To do that, they first reversed their own finding just before noon on 20 January 2001 that Pres. Joseph Estrada was permanently disabled at that time, and which they affirmed in a Resolution on Monday, 22 January 2001.

(3) Realizing that foreign recognition of the Arroyo govt, such as by the US, hinged on the understanding that Pres. Estrada HAD resigned by 20 Jan 2001, they took 2 months to invent CONSTRUCTIVE RESIGNATION, thus changing the reason for the regime change. But it was NOT the reason they declared the Presidency vacant to begin with!

(4) The two decisions stand as thumbs in the nose of the Law. They can't properly be taught in the Law Schools and are a hideous embarrassment!

Estrada vs. Arroyo and Estrada vs. Desierto are separate from the plunder charges, though of course one is contingent on the other. But the 2001 Regime Change is not now sub-judice and won't be even when the plunder decision comes up for automatic review as a capital case.Maybe the Death Penalty abolition is the sugar coating on the CHACHA pill. Remember folks, for Chacha to continue the Supreme Court must REVERSE itself on Santiago vs. Comelec, which decision also declared something that must now be reversed--that the people's initiative is dead for lack of an enabling law. So isn't that what Panganiban's loquaciousness is a set up for?Seems to me that Chief Justice Artemio V. Panganiban has just cut the legs out from under the High Court's Bench and called into serious doubt its entire recent record with his eyebrow-raising post-judice pronouncement over the weekend that the Supreme Court majority commited a judicial error in the 1999 Leo Echegaray case, effectively executing a convicted child rapist unjustly. (But not him, of course, since he dissented!)

Paradoxically, I thank the Chief Justice for unwittingly confirming the persistent claim made on this blog that there is nothing infallible or final about Supreme Court decisions. Even if the Supreme Court has ruled with seeming finality on something, Justice must be pursued until it is right.

Yet the "judicial error" Panganiban refers to in this instance is not quite what you might think. There was no horrible mistake as such, or grave abuse of discretion, or transcendental miscarriage of justice (unlike on the event shown at right). Or the wrong guy. No. Leo Echegaray was beyond any reasonable doubt, guilty as charged of raping the child of his common law wife. In 1996, the Supreme Court affirmed the lower court's judgement and Leo was executed for his crime in 1999. But now cries Panganiban, wagging his Chief Justice's finger at the nasty, murdering other justices of the Davide Court, Leo should only have gotten life in prison because there was this technicality see: the complaint against him and the criminal information leading to his arrest did not in fact mention that he was the common-law husband of the victim's mother. Now wrap your brain around this: the penal code specifically imposes the death penalty on rapists who are the common law husbands of their victim's mothers, but Chief Justice Panganiban claims the Court should have given poor Leo life in prison based on the minor technicality that this fact was not mentioned in the original criminal complaint against him!

Ishmael Kahn, the current Supreme Court administrator reacted by pointing out that though the fact was not in the complaint itself, it was amply proven and discussed and known to the Court as a fact during deliberation. In other words the "judicial error" that Panganiban ascribes to the 1999 Echegaray decision is this: the Supreme Court did the right thing for the wrong reason. It ignored the technicality that was in effect dealt with by the Court's deliberation.

Reacting to media queries for clarification, the Chief Justice Big Mouth back-tracked a little today and said it was just his "personal opinion." But he admits the real reason for his sudden pronouncement that they killed a man unjustly in 1999: he just wanted to prove that under a regime where the Death Penalty is an option "erroneous" decisions cannot be corrected. That may be true, but it is really beside the point in the Echegaray case. Methinks Panganiban overstretches and picks quite the wrong example to prove that point. He is also practicing again, what he and Davide and the Edsa Dos conspirators did in 2001: "The end justifies the means."

To come out now speaking as Chief Justice is just not playing by the Rules of decency or institutional integrity. It is unseemly in a Chief Justice and casts the entire Court's record now in serious doubt. A murmur of commentary and grumbling is rising in the background about such loquaciousness from the Chief Justice in cases and historic issues that could easily come before the High Court this year. On Monday, former President Joseph Estrada suggested that the Supreme Court ought to then review its entirely erroneous decision declaring the Presidency vacant on 20 January 2001 and swearing in then Vice President Gloria Macapagal Arroyo, under circumstances that most freshmen law students end up chuckling and grimacing about.

But no. Chief Justice Panganiban told reporters at an Independence Day celebration that he would not comment on that since Estrada's case was bound to come up to the Supreme Court. Well whoop-dee-doo Mr. CJ. That could happen in the Leo Echagaray case now, and the six other men executed in that same time period. Likewise, the law passed by the Congress abolishing the death penalty has not yet stood judicial or even "political" review, so a major constitutional case on Capital Punishment could come before the High Court. In fact, it is almost certain that that will happen.

So! What does this do to the Court of Last Resort? To judicial impartiality? To Blind friggin' Justice?? But judicial partiality and partisan political activity from the Bench, were ever Panganiban's and Davide's and Edsa II's original sin anyway. So, what's one more mockery of the Rule of Law when the cause is so obviously sanctimonious like abolition of the death penalty? Or the overthrow of a president in a civilian military coup d'etat still defended by moralists who call themselves Civil Society?

It should be remembered that in the case of Edsa Dos, it was a positive ACT of the Supreme Court following an obviously factually erroneous finding that the Presidency was vacant, namely, the swearing in of Mrs. Arroyo by then Chief Justice Hilario Davide. She would NOT have become President then without that act! Damn putschists. I think Davide and Panganiban deserve capital punishment for this. Or at least a hundred pushups. Something!

RAUL PANGALANGAN almost has me won over to his point view on the death penalty in his PDI column essay this week, A Passion for Reason: The Quality of Mercy. He presents at least three cogent and potent arguments against capital punishment

The most powerful pragmatic argument was that the death penalty has failed to deter crime. The true deterrent is the reasonable certainty of being caught and convicted. I am not sure if Congress looked at the numbers when it repealed the death penalty law, or if such reliable data were available at all. But of this I am certain: if the goal was deterrence, we are better off with a CSI-capable National Bureau of Investigation, a Richard Goldstone or Louise Arbour as prosecutor, and a Harry Blackmun as judge...

Moreover, death is too final a verdict in an imperfect of world where police and courts err, and civilized legal systems have preferred to let the guilty live “because the constable blundered.” Justice Blackmun said: “[T]he inevitability of factual, legal and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent and reliable sentences of death required by the Constitution.”

The other compelling practical argument was that our justice system is flawed. First, it is anti-poor, and the death penalty is disproportionately borne by those who cannot afford able counsel. Indeed, the US Supreme Court, in the leading case Furman v. Georgia, struck down the death penalty as “cruel and unusual” if it was arbitrary, as when it was racially biased, or it offended society’s sense of justice.

Regarding the deterrent effect of the death penalty, I am sure that some are deterred and some are not. Unfortunately from a statistical point of view, we, the public are necessarily made aware mainly of those who are NOT deterred. Naturally. Those who ARE deterred will never make it to the front pages and news hours. But if partial deterrence is not compelling enough to someone philosophically, I would suggest the following reasoning.

My own position is that Capital Punishment should not be taken off the table as an option. It should be used but rarely and in the spirit not of punishment or retribution, but as part of society's right to defend itself. The existence of people like Abu Musab Al Zarqawi, or the Abu Sayyaf Bandits, or indeed Leo Echegaray himself, argues for the view that Capital "Punishment" is actually just a bad name for a violent but necessary form of self-defense by Society itself. Capital Punishment to me, is actually not a purely judicial function, but an extension of National Defense and is philosophically defensible in that context.

INDEPENDENCE DAZE:Manuel L. Quezon III produces a charming essay today on the issue of WHEN Philippine Independence Day ought to be celebrated. It's a cheerful sally into an old issue on a day of desultory speeches. The sparse audience listening to a sleepless and puffy-looking President Gloria Macapagal Arroyo furiously fanned itself in what looked like oppressive heat and humidity at the Luneta's Quirino Grandstand this morning.

Bambi Harper writes what sounds like a valedictory and farewell. Historian, antiquarian and I guess, soon to be a graduating Inquirer columnist, she'll be missed in that line-up. By a few.

21 comments:

While I am NOT for the death penalty "en principe", I strongly believe that if it, along with other prison sentences, must be imposed, it is for the following reasons: punishment and retribution!

The purpose of putting a criminal behind bars ad vitam eternam or of taking his life away may serve as a form of society's right to defend itself but there should no doubt that criminals are jailed (and/or lethally injected with whatever) because they are punished for a crime against society; because society has the right to exact retribution when an individual or group of criminals commit a crime.

Let's not beat around the bush.

Prison is NOT monastery - it is a punishment house and those that go through the punishment house to receive a lethal injection know that their life is extinguished because society has demanded retribution.

I would rather put those words (PUNISHMENT & RETRIBUTION) on every billboard around the country to deter small bandits from becoming big bandits than play around with a tenet because at the end of the day, that's what putting criminals to sleep or behind bars for all eternity is all about.

For victims, there is something cathartic about death or prison as a punishment for the purpose of achieving retribution. But I think this is a weak argument for the death penalty, even if I agree that just sentences should be executed. It is weak, because it seems that there are more punishing sentences than even death, in certain particularly heinous cases. You know, where death is too good for the perpetrator. In some ways, a guaranteed life in prison would be harder on the convicted.

Also the argument of Pangalangan and others is very persuasive to me: it is the certainty or high probability of being punished, not just the punishment itself, that deters people.

Even deterrence is a weak argument for the death penalty in this light.

Did Justice Panganiban admit an error of judgement? That's big for me for are they not supposed to be judges? Do we have judges that make errors of judgement?

Ousting Erap was an error of judgement. Look what they took instead - GLORIA! Panganiban and Davide were part of the groups that made this judgement error. Some of them repented for what they have done but these two have not. The former are calling for Gloria to resign but the latter are still standing by Gloria. But at least, Panganiban has admitted that he is capable of error of judgement. Can we still trust him and his Supreme Court?

BFR--No admission of error on his part since he dissented in that case. This is purely self-serving and ideological in support of the coming death penalty abolition. I also suspect it is the sugar coating on the chacha pill, where they have to reverse Santiago vs. Comelec.

As for the death penalty: ah but "..for to die is to rest." Why should one give the rascal that luxury?

As for Panganiban and Davide and that strange legal concoction called 'constructive resignation': if it's any comfort, there is no erasing the tracks and marks these honorable gentlemen have left behind for future generations'amusement and to their eternal embarrassment and dishonor. If only for that Estrada has his revenge exacted.

Panganiban did not dissent in the main decision and in the denial of the motion for reconsideration. Check out the original texts of the Echagaray decision here and here. Note that the decision and the resolution on the motion for reconsideration were both decided unanimously.

Also note that the denial of the motion for reconsideration was promulgated on February 7, 1997, a few days after the promulgation of the controversial decision on the Manila Hotel case, which was promulgated on February 3, 1997, a mere coincidence I suppose.

Thanks for that Marv. I take it that "dissent" being mentioned by CJ Panganiban in media was in the sentencing?

It does bring up an impt point. I think that some members of the public may have gotten the impression that Leo Echagaray was innocent of rape, when in fact there was that complicated bit about a technicality in the statement of the information. I posted the link as an update to the interview with Ishmael Kahn.

In other words CJ Panganiban did not dissent in the guilt of Echegaray but only in the punishment.

That only makes his statements all the more unethical and purely motivated by a desire to ram the abolition of the death penalty through while he is the Chief Justice.

What do you think about the prejudicial nature of his statements to all kinds of cases that might come up on the death penalty.

As far as I know, the decision and the sentencing are one and the same - there is no separate document/deliberation for the two. Panganiban is twisting things too far. So he concurred in the decision, that means he concurred in the punishment. Maybe he should have said that HE erred in concurring with the decision.

Anyway, his principal is the same as he is: Gloria Arroyo was one of those who marched in Makati calling for Echegaray's execution, and made a campaign promise to Tsinoys to retain the death penalty. Guess what tune she is singing now.

Karl, there is no planned papal visit. Gloria is going to drop by the Vatican; that's what John Nery meant.

You know Dean, the more I think and wonder why Panganiban WENT OUT OF HIS WAY to tell the press about his dissenting opinion on the Echegaray case, which really was unecessary (and assuming he indeed dissented which will become more perplexing if he did not as others seem to point out) the MORE I BELIEVE that what you said is bound to happen:

"Maybe the Death Penalty abolition is the sugar coating on the CHACHA pill. Remember folks, for Chacha to continue the Supreme Court must REVERSE itself on Santiago vs. Comelec, which decision also declared something that must now be reversed--that the people's initiative is dead for lack of an enabling law. So isn't that what Panganiban's loquaciousness is a set up for?"

Friggin 'ell, Dean! But of course...Darnation of all darnation, the Santiago vs Comelec ain't a dead issue what with cha cha still gliding about and, let's not forget Gloria's threat on Independence Day (thought it should be on July 4 but never mind) "The day of reckoning is at hand BS..."